Getting the Money You've Won in Court: Enforcement of Civil Judgement

Enforcing a Civil Judgment

            Just because you have prevailed in a lawsuit, it does not mean that your work is done.  Winning a lawsuit is half the battle and collection of a judgment can be as much of a headache as actual litigation.  Often, those collecting a judgment face an uphill climb.

Once this finding is made after a civil trial, a judge will issue a judgment, which is a legal decision which states the various obligations of the parties—after the trial. For example, in a contract dispute a plaintiff may be granted $35,000 in damages against a defendant.  The plaintiff in this example is the party to whom money is owed, and is referred to as the “judgment creditor.”  The defendant is the party who owes the money, and is known as the “judgment debtor.”

            This presentation will discuss the process that a judgment creditor should pursue to enforce a judgment. First, we’ll look at the two steps that a judgment creditor should take prior to post judgment collection: avoiding judgment-proof creditors and determining the potential for debtor bankruptcy. Next, we’ll look at how a judgment creditor can use discovery to get a better sense of a debtor’s assets. Another presentation will cover will cover collection practices, should those become necessary.

“Judgment-Proof Debtors”

            A phrase heard often in the legal realm references “judgment-proof” debtors.  This phrase describes a debtor who has a judgment against him, but has no assets to pay that judgment, and will not in the foreseeable future.  For instance, if someone owes $50,000 to a credit card company and the credit card company secure the judgments that affect, but the debtor has no income or assets, that debtor may never have the practical ability to pay back the debt. If there is no money to collect, it is irrelevant how much the debtor owes.

            A judgment creditor may want to avoid the time consuming and expensive process of collecting on a judgment, if the debtor is “judgment-proof.” Before instituting a legal action to collect on a debt, a creditor may therefore investigate the solvency (or lack thereof) of the debtor. This can be done through the discovery processes that we’ll discuss a bit later or even by asking the debtor to provide proof of insolvency. For example, a debtor may be willing to provide copies of her tax return or Medicaid application to prove insolvency and thus convince the creditor to stop collection efforts. Of course, the reliability of any such provided information must be taken into account, but this factor should be considered before investing the resources necessary to maintain collection actions. Spending resources to collect money from a person who has none may be throwing “good money after bad.”[1]

            Before instituting collection actions, it is in the best interest of any judgment creditor to determine the likelihood that a debtor will file for bankruptcy if collection efforts are made. Creditors should take the time to ensure (to the extent possible) that a debtor will not file for bankruptcy.

If a debtor files for Chapter 7 (“liquidation”) bankruptcy and the judgment creditor’s interest is listed on the schedule of creditors created in the bankruptcy process (and the debt is not of the type that is exempt from discharge under the bankruptcy code), that debt will likely be wiped away.[2]  In a Chapter 7 bankruptcy, a debtor’s assets are liquidated (with certain exceptions for exempt property) and the liquidated assets are distributed to the creditors.  Unsecured creditors such as credit card companies often receive extremely limited paybacks in Chapter 7 proceedings, as people driven to file for Chapter 7 bankruptcy usually do so because they are in extreme financial distress.

Often, a better solution is to attempt to negotiate for an agreement for repayment of at least a partial portion of what is owed, which is known legally as an accord and satisfaction.[3]  An accord is an agreement between two parties to a contract to accept some alternate form of performance to discharge a preexisting legal duty.  Satisfaction is the performance of that agreement.[4]  In the realm of debt collection, a judgment creditor may agree to accept a lesser amount than what is owed rather than incurring costs to try to collect a debt that could ultimately be discharged in bankruptcy.

Discovery

            A judgment may conduct discovery to facilitate collection of the owed amount.[5]  Discovery can be accomplished while the creditor is still considering whether to press collection efforts or as part of the collection process. Discovery is a legal term which describes the process by which parties to a lawsuit disclose information to one another through requests, written affidavits, document exchanges, and other methods.[6]

            Discovery methods are available to parties to civil litigation. Therefore, to gain the benefit of the abilities to use these devices to their fullest expense, the creditor will need to bring a civil action against the debtor. This could be the initial lawsuit on the applicable that or an action to collect on an existing judgment.

One traditional method of discovery used by a judgment creditor is submitting an interrogatory.  Interrogatories, which are a written list of questions that one party sends to another, are used to determine the location of assets, such as bank accounts, personal property, real property, or income.  For example, one of the questions in an interrogatory may ask a judgment debtor “What is your current gross yearly income?” or may request “Please list each and all of your bank accounts and the currents balances therein.”  These questions are designed to inform the judgment creditor about the assets that may be able to satisfy the judgment from the trial.[7]

            A second form of discovery is the deposition. The defendant (or another witness) can be required to submit to a sworn oral interview that is recorded   . Deponents who lie during depositions can be subject to perjury charges and statements made during depositions can be entered into evidence under certain conditions. Because lines of questions can be followed up upon on the spur of the moment, depositions can be excellent ways in which to determine the extent of a debtor’s available assets.

Another form of discovery is the request for admissions, which are questions (hopefully) leading to a judgment debtor admitting the existence of certain facts.  These requests help to establish known facts, or facts believed to be known, and can streamline the discovery process.  Once an admission is given, it is taken as true and need not be proven at trial, saving time and expense in the collection process.  Failure to respond to requests for admissions within a certain time frame are automatic admissions. Thus, a debtor will have to file a timely response to such a request.

A creditor can send requests for production of documents which require a judgment debtor to provide documentation about the debtor’s assets.  Most often the request is for bank statements, credit card statements, mortgages, and other financial documents.  These documents can be used by the judgment creditor to determine which, if any, assets are subject to collection.[8]

            Another commonly-used form of post-judgment discovery is the debtor’s examination.  With this method, the judgment creditor requests the court to issue an order requiring the judgment debtor appear before the judge to answer questions, under oath, regarding the debtor’s assets, income, and other financial information.[9]  The creditor can require the documents sought in the request for production of documents be brought to the examination. Additionally, the creditor can ask the debtor questions such as “How much is your car worth?” or “Where do you work?” 

These discovery processes are crucial because they lay the groundwork for debt collection and provide a creditor with a better picture of a debtor’s finances. Once the creditor undertakes discovery and has a stronger sense of a creditor’s financial assets, a judgment creditor must employ a collection method to enforce the judgment.    

Once the discovery process has been completed and the creditor is made the decision to engage in collection activities, their various methods with which to do so. Those are covered in a different presentation.

Obtaining post-judgment collection may be intimidating. By first obtaining proper information about the debtor prior to starting the collection process, and then using discovery and the proper collection methods, post judgment collection can be accomplished while minimizing financial and temporal costs.